Preparing for a Workplace Audit,

Inspection or Investigation

FEI Eye Opener

January 23, 2013

Lisa M. Bolton and

Gerald Griffiths

250 Yonge Street, Suite 3300

Toronto, Ontario M5B 2L7

Tel 416.603.0700

Fax 416.603.6035

24 Hour 416.420.0738

www.sherrardkuzz.com

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Agenda

Types of Ministry of Labour (MOL) inspections,

audits, investigations

Powers of the Ministry of Labour officers

How to get ready for an inspection / audit

What do when an inspector arrives

Best practices for compliance

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Types of Inspections, Audits,

Investigations

Ministry of Labour (MOL)

Employment Standards Act

Compliance inspection/audit

Complaint investigation

Occupational Health & Safety Act

Inspection, including Bill 168 inspections and

audits

Investigation

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Increased chance of inspection or audit

if…

“High risk” sectors

Blitz

Previous contravention

Complaint filed

Accident / lost time record

Inspection by other government authority

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Notice

No requirement to give advance notice

Written notice typical for

Proactive ESA inspection/audit

Investigation of ESA complaint

No notice for OHSA inspection/investigation

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ESA Inspections/Audit

Conducted by Employment Standards Officer

May be

Proactive

Reactive

ESA Inspections/Audit

ESA gives officer wide-ranging powers of

inspection (section 91) Enter and investigate without warrant

Examine records or anything relevant

Require production of records or anything relevant

Demand to be made in writing

Take records or anything relevant

Issuance of receipt & obligation to return

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ESA Inspections/Audit

Officer has power to:

Use “data sources” available in workplace (e.g.,

computers)

Question any person including all employees

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ESA Inspections/Audits

Obligation to assist Officer to interpret /

produce record in readable form

It is an offence under the ESA to obstruct an

Officer; if convicted, penalties of up to:

For individual: up to $50,000 and/or

imprisonment for 12 months

For corporation: up to $100,000 for first offence

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ESA Inspections

Records typically required for inspection:

Time cards / time sheets

Payroll documents

Vacation pay & vacation time records

Employee list and associated information

Pay statements

Overtime/averaging permits, Director’s

approval

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ESA Inspections

Top contraventions discovered during

proactive inspections:

Unpaid wages

Public holidays

Overtime

Vacation pay

Minimum wage

ESA Complaint Investigations

Triggered by employee complaint

Employee must try to resolve complaint with

employer first

Investigation

typically initiated by letter to employer

conducted by phone, in writing, by workplace visit,

and/or meeting with parties

Both parties have the opportunity to present facts,

submit documents and make arguments

Possibility for settlement

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ESA Complaint Investigations

Decision may be rendered based on

employer’s written response

Submit detailed response Explain facts

Attach all relevant documents

Address all factual and legal arguments

Strict time frames for response Ask for extension if needed

30 day time period to appeal decision

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ESA Complaint Investigations

Most common types of complaints

Failure to pay notice entitlement on termination

Unpaid wages/vacation pay

Reprisal

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If ESA violation found…

Administrative Order

For compliance

To pay wages (max. $10k per employee)

To compensate/reinstate (reprisal)

To do something else to remedy non-

compliance

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If ESA violation found…

Prosecution

Part I Offences

Offence Notice (i.e.: a ticket with a set fine)

Summons (i.e.: court imposed fine – max $500)

Part III Offences

Summons (i.e.: court imposed fine –100K +)

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OHSA Inspections

Conducted by Ministry of Labour Health &

Safety Inspector

OHSA gives Inspector wide-ranging power

(section 54)

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OHSA Inspections

Inspector has power to:

Enter workplace

View, copy and take away documents

Interview workers (w/o employer present)

Stop work

Require testing of equipment at employer’s

expense

Make orders

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OHSA Inspections

It is an offence to obstruct / interfere with an

Inspector’s duties

But information provided to the Ministry of

Labour may result in charges against the

employer

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OHSA Inspections

Inspectors look at

Employer duties under

the OHSA

Joint health & safety

committee /

representative

Safe work environment

“Killer hazards”

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OHSA Inspections

Limits on the powers of Inspectors:

When the inspector becomes an investigator,

warrant required

Must have reasonable and probable grounds to

believe that an offence has been committed and

the item sought will afford evidence of the

offence

Privilege (solicitor client, litigation privilege)

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OHSA Inspections

Administrative Orders

Notice of contravention

Orders

For compliance

Stop Work

Bar access to / use of workplace / equipment

Training

Etc.

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OHSA Inspections

Offences

Part I Offences

Offence Notice (i.e.: a ticket with a fine)

Summons (i.e.: court imposed fine – max $500)

Part III Offences

up to 25K fine and/or 12 months of

imprisonment for an individual

up to 500K fine for a corporation

Upcoming “Blitz”

February and March 2013

Slips, trips and falls in manufacturing,

industrial and construction workplaces

Workplace Violence and Harassment (Bill 168)

in health care workplaces

Ventilation Hazards in mining workplaces

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The Bill 168 Experience

Embedded in all workplace inspections

Inspector is looking for:

Risk assessment

Written policies

Written programs

Training records

May ask workers about elements of the

training programs

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Preparing for an Inspection / Audit

Best way to ensure a smooth inspection/audit

is to have already performed a self audit

Demonstrate compliance

Identify and remedy areas of non-compliance

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If inspector shows up without notice

Ask for identification

Ask purpose of visit

Do not impede

inspection

Consider calling

legal representation

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Preparing for an Inspection / Audit

Review notice

Gather and organize information/documents

Identify deficiencies and action items and take

immediate steps to remedy

Identify “point person”

Greet and accompany inspector

Explain documents and records

Locate work area for inspector / auditor

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Inspection / Audit Day

Notify front office staff

Make inspector / auditor comfortable

Inspector / auditor not your friend (or enemy)

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Inspection / Audit Day

Co-operate fully & be responsive

Provide all requested documents

Answer all questions

Do not guess – get information

Disclose only required information

Scope

Time frame

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Inspection / Audit Day

If request cannot be satisfied on the spot

Explain why information not available

Make note of request

Promise to get information

Get information as quickly as possible

Document & demonstrate efforts to comply

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Inspection / Audit Day

If inspector wants to take away records, offer

to make a photocopy

Ask for receipt if originals taken

Make note of the documents that are taken

away / copied by inspector / auditor

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Inspection / Audit Day

If non-compliance found:

Discuss with the auditor whether they will

provide you with an opportunity to remedy

any infractions prior to an order being issued

If an order is made:

Remedy the situation as quickly as possible

Fax in Notice of Compliance form

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Inspection / Audit Day

Do not:

Keep inspector / auditor waiting on arrival

Let inspector / auditor walk around workplace

unaccompanied

Argue with the inspector / auditor

Discuss any topic not raised by the inspector /

auditor or provide too much information

Questions & Answers

Lisa Bolton (416) 603-6958 lbolton@sherrardkuzz.com

Gerald Griffiths (416) 603-2234 ggriffiths@sherrardkuzz.com

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Sherrard Kuzz LLP

250 Yonge Street, Suite 3300

Toronto, Ontario, Canada M5B 2L7

416.603.0700 Phone

416.420.0738 24 Hour

416.603.6035 Fax

www.sherrardkuzz.com

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The information contained in this presentation is

provided for general information purposes only and

does not constitute legal or other professional advice.

Reading this presentation does not create a lawyer-

client relationship with Sherrard Kuzz LLP.

Readers are advised to seek specific legal advice from

members of Sherrard Kuzz LLP (or alternate legal

counsel) in relation to any decision or course of

action contemplated.